PROSPECTS THE CONFRONTATIONS ARE COMING BY PAUL STARR

The Confrontations Are Coming

BY PAUL STARR

This spring has brought relief and hope—relief from the nightmare of the past four years and hope for the pandemic’s end and genuine progress in meeting the challenges of economic insecurity, climate change, and racism. Still, I can’t shake the sense that this is just a temporary respite from the country’s recurring crises of political gridlock and rightwing reaction. Donald Trump may be stewing in Mar-a-Lago, but Trumpism remains an undiminished force in a Republican Party that dominates key states and may soon be back in control of at least one house of Congress. With a 6-3 majority, the Supreme Court’s right wing is in a stronger position than at any time since the mid-1930s to overturn progressive policies. In Arizona, Republicans are conducting a partisan recount of 2020 ballots that looks like a rehearsal for stealing future elections. The confrontations are coming with the red states, congressional Republicans, the high court, and Trumpism itself, and the question will be how, if at all, Democrats can overcome them.

In his first hundred days, Joe Biden has given his party a fighting chance to do that. He’s responded to the country’s immediate crisis with two skilled rollouts—the rollout of COVID-19 vaccinations and the rollout of his domestic agenda, starting with the passage of the American Rescue Plan’s stimulus package and continuing with his ambitious proposals for investment in infrastructure and families. By front-loading big, popular ideas and framing them as a means of proving democracy works and competing with China, Biden has simultaneously moved left and co-opted appeals of the right. As Harold Meyerson writes in this issue, “Wrapped in the armor of both egalitarian nationalism and liberal democracy, Bidenism bids fair to have wider appeal than any defining Democratic ideology since, perhaps, the New Deal.”

Biden’s armor is partly his persona as an older, white, Catholic man who projects moderation even as he calls for liberal priorities. But he has also shown a keener strategic sense than most people previously gave him credit for. Republicans responding to his policies have seemed flat-footed, stuck in culture-war poses that don’t work as a way of taking him down. He has also kept Democrats largely united behind him; in the early going, he has combined his dual roles as the leader of the nation and his party more successfully than any recent Democratic president.

But despite his promising start, Biden faces severe limits from the fragile Democratic majorities in Congress and a Trumpified Republican Party that is in a panic about a changing electorate and determined to use such power as it has to block Democrats from material accomplishments.

Conservative parties that see danger on the horizon typically resort to two formally legal strategies to entrench themselves. One is to change electoral rules; the other is to use counter-majoritarian institutions, principally the courts, to limit what elected opponents can do. Republicans currently have two bastions of power in state governments and the Supreme Court, and they are leveraging those control points in a two-pronged entrenchment strategy—passage of restrictive electoral rules in the states and reliance on the Court to box in and roll back Democratic policies. (There’s also a third, more radical prong: the Trumpian claim of a stolen election and denial of Biden’s legitimacy, the predicate for rigging elections outright.)

The push by Republicans on the first prong has already begun in Georgia, Arizona, Florida, Texas, and other states where they are enacting measures to suppress voting by Democratic constituencies and to seize control of the counting of ballots. Republicans hold the advantage at the state level. They control both legislative houses and the governorship in 23 states, while Democrats have trifectas in only 15. The redstate trifectas also give Republicans an edge in gerrymandering electoral districts in the wake of the 2020 census.

If Democrats had done better in Senate elections in 2020 instead of just squeaking by with 50 seats, they might now be sure of passing the federal voting rights and electoralreform bills H.R. 1 and H.R. 4, which would override the state voter suppression measures and require the establishment of independent redistricting commissions. But unless Joe Manchin and Kyrsten Sinema change their minds, the filibuster stands in the way. Perhaps some voter suppression measures can be defeated in court, but if the outcome depends on the Supreme Court, most will probably survive.

That’s not to say Democrats are doomed. Some of the Republican efforts could backfire; they could also fail if they serve as a wake-up call to progressives about the urgency of local organizing. But the organizing will succeed only if people believe that voting Democratic makes a real difference, which is why Biden’s early success on policies this year and next is so important.

The obstacles to Democrats’ retaining control of Congress in 2022 can appear overwhelming. Not only does the president’s party nearly always lose House seats in midterm elections; midterm turnout tends to be disproportionately low for Blacks, Latinos, Asians, and younger

voters. Democrats also face a likely net loss of House seats as a result of Republican-controlled redistricting and Democratic retirements in swing districts. In the Senate, however, Republican retirements in Pennsylvania, North Carolina, and Ohio could help Democrats, who in 2022, as The Atlantic’s Ron Brownstein points out, will not be defending a single seat in a state that voted for Trump. But they will have to defend Raphael Warnock’s seat in Georgia and Mark Kelly’s in Arizona— both states where Biden won by the narrowest of margins and Republicans are rewriting the election rules.

The deeper problem for Democrats in congressional elections is structural, due to the concentration of their voters in cities—and as Jonathan Rodden shows in Why Cities Lose, the Democratic vote is more concentrated in cities now than it has ever been. The Senate overrepresents the more rural and white states; in House elections, Democrats “waste” votes in urban districts where they run up lopsided victories. To win a majority of legislative seats, Democrats don’t just need a majority of votes nationally; they need to win by a majorityplus—by several extra percentage points—to compensate for their inefficient geographic distribution.

That underlying problem, however, doesn’t wholly explain why Democrats met so many disappointments in downballot races in 2020. They initially seemed in a good position to win Senate races in Maine, North Carolina, Iowa, and Montana that they ultimately lost. They expected to gain House seats and instead lost 15, leaving them with a margin of only seven. Some voters who chose Biden apparently did not trust Democrats enough to vote for Democrats for Congress and give the party an unqualified mandate.

This is where Democrats could be in a stronger position in 2022. The pandemic-related fear that Democrats would lock down the economy at the cost of jobs may have been responsible for some voters’ ambivalence in 2020. If the pandemic is behind us next year, the economy is booming, and Biden continues to provide steady leadership, Democrats may be able to offer a politics of hope and reassurance as a convincing alternative to the Republican politics of fear.

But let’s face it: Democratic legislative opportunities may be cut off after the midterms, just as they were in 1994 and 2010. During last year’s campaign, many Democrats ridiculed Biden for his talk about bipartisanship and were surprised, once he was in office, that under his leadership Democrats went big and went alone on the American Rescue Plan. They know this may be their one opportunity. After the midterms, we may be back to gridlock.

THE SUPREME Court’s six-member right-wing majority looms as a threat, and not just to the current progressive agenda. No longer held back by the risk of a single defection from within their ranks, the conservative justices now have their opportunity to go big. This is the moment conservatives have been waiting for to enfeeble federal regulatory powers, unions, and other bulwarks of liberalism and the modern liberal state.

The Court’s right wing is in this position only because Senate Republicans played hardball twice. They broke traditional norms when they refused to vote on Obama’s nomination of Merrick Garland more than a year before the 2016 election, and they broke those norms again when they confirmed Amy Coney Barrett on the eve of the 2020 election.

I agree with many others that Democrats need to play hardball in response by expanding the Court and reforming it for the long term. Rather than make any proposal, however, Biden has appointed a commission to study Supreme Court reform, a step that some have criticized, as Elie Mystal does in The Nation, as an “excuse to do nothing.” The commission, Mystal fumes, “isn’t even allowed to make policy recommendations.”

It’s a good thing, though, that Biden both appointed the commission and told it not to make recommendations. It keeps Court reform under discussion at a time when the support for Court expansion in Congress and the country doesn’t yet exist. Some fruits cannot be picked before they ripen. The case for waiting until Court expansion ripens has been best laid out, interestingly enough, by Charles Fried, who was Ronald Reagan’s solicitor general. Last October, Fried warned that with Barrett on the court, its “six-person majority is poised to take a constitutional wrecking ball to generations of Supreme Court doctrine—and not just in matters of reproductive choice.” Reciting a series of recent Court decisions on campaign finance, partisan gerrymandering, unions, and other issues, Fried noted that all of the rulings are “incurable by legislation because they were said to be based in the Constitution” and that “every one of them favors, and was favored by, partisan Republican interests and was decided 5 to 4 by Republicanappointed justices.”

Fried left no doubt about his position on Court expansion. Echoing Winston Churchill’s famous line about democracy, he argued that expanding the Court “is a bad idea, except for all the alternatives,” which he added “boil down to just one: a predictable, reactionary majority on the Supreme Court for perhaps as long as another generation.” His advice was to wait to see whether the Court’s majority “overplays its hand. If it does, then Mr. Biden’s nuclear option might not only be necessary but it will be seen to be necessary.” That is exactly the strategy Biden and the Democrats have to follow, as much as we may worry about how the Court’s right wing will rule imminently on a host of issues— including the threats to American democracy.

Today’s Republican Party is the source of those threats. We saw it clearly after last fall’s election, when Donald Trump tried to alter the results and to intimidate Congress by inflaming a mob to attack it—and Republicans could not bring themselves to repudiate him. We see it in Arizona, where the Republican state Senate has turned over an election recount to a private contractor who had echoed Trump’s claims. We see it in Georgia and Michigan where Republicans have repudiated officials who counted the vote honestly.

It’s not clear that a democracy with a two-party system can survive when one of the parties no longer agrees to be bound by the rules of fair elections. We may have just been lucky in 2020 that the institutional checks held; they may not next time.

Under these circumstances, Democrats have to be bold and careful simultaneously. They have to be bold in fighting the battles they are fighting, and they have to be careful in choosing which battles to fight and how they fight them. Not every cause is ripe; not every cause is equally urgent. Right now, they need to prove government works for ordinary people, and just as important, they need to pass federal election reforms to give American democracy the strongest possible defense against right-wing assault. If they are unable to do so because of the Senate filibuster, it will be the kind of colossal failure that later generations never forgive. n